Fedweek Legal

A federal employee alleging age discrimination faces strict court filing deadlines, according to a recent Federal court decision, Rossiter v. Potter, D. Mass., No. 02-121912 (5/16/03). The court’s decision discusses the two methods that a federal employee or applicant can pursue age discrimination allegations against the federal government. The employee may use the EEOC administrative hearing process, where the employee must contact the agency’s EEO office within 45 days of the discriminatory event and then ultimately has a hearing before an EEOC administrative judge. Keep in mind that federal employees who allege only age discrimination and use the administrative process cannot recover attorney fees. At the conclusion of the EEOC proceedings, the employee may file suit in federal court within 90 days after he receives a final administrative decision.


The second method for pursuing an age claim is to avoid the administrative process and file directly in court. This is an option available only where an employee claims discrimination under the Age Discrimination in Employment Act (ADEA). This option is not available to people who claim race, color, sex, disability/handicap or religious discrimination under Title VII of the Civil Rights Act. However, unlike other types of discrimination, there is no basis for recovering compensatory damages under the ADEA.

Federal employees face an unusual situation because the ADEA does not identify an employee’s deadlines for filing in federal court when he chooses to avoid the administrative process. The Rossiter court followed the guidance of Title VII and the only federal appellate cases that have considered the issue, Edwards v. Shalala, 64 F.3d 601 (11th Cir. 1995), and Stevens v. Department of Treasury, 500 U.S. 1 (1991).

Rossiter decides that to timely file an age claim against the federal government, a federal employee or applicant must take the following steps: Within 180 days after the discriminatory event, the employee must file a notice of intent to sue with the Equal Employment Opportunity Commission. Then, the employee must wait at least 30 days before he can file suit in United States District Court. The employee must file in court within 120 days after filing with the EEOC or 106 days after the discriminatory event, whichever is longer. This 106-day deadline is based on a Supreme Court discussion which states that filing within 106 days of the discriminatory event is “well within” any deadlines. Stevens v. Department of Treasury, 500 U.S. 1 (1991). If the employee misses both of these deadlines, his lawsuit will likely be dismissed for being untimely.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **